1. (a) A party may schedule and take the deposition of a custodian of records or a person in a similar capacity. A party has the right to inspect and analyze the records listed in this subsection. Title 42 Pa.C.S. § § 6151—6160 (relating to medical records) shall be followed, if applicable. The deposition may be used to locate, authenticate and obtain copies of records which are material and relevant to the proceeding, including:

   1. (1) Employment, earnings or work environment.
   2. (2) Treatment, including vocational and physical rehabilitation.
   3. (3) Mental or physical examination.
   4. (4) Hospitalization.
   5. (5) Testing.
   6. (6) X-rays.
   7. (7) Autopsy.
   8. (8) Tissue slides and samples.
   9. (9) Surveillance.
2. (b) A party may take the discovery deposition at any time after the assignment of the petition to a judge.
3. (c) The notice of discovery shall conform to § 131.64(b) (relating to notice of oral depositions) and shall also contain a description of the items to be produced at the deposition.
4. (d) The service of the notice of discovery shall conform to § 131.64(c).
5. (e) Objections shall conform to § 131.65 (relating to objections to taking of oral depositions).
6. (f) A deposition under this section shall be in the form of a written affidavit of the custodian of records as deponent without interrogation. The affidavit shall be in the form, and contain the information specified in § 131.69 (relating to form of deposition affidavit). Title 42 Pa.C.S. § § 6151—6160 shall be followed, if applicable.
7. (g) The deposition affidavit and the records or items authenticated thereby will be admissible into evidence in the proceeding before the judge in the same manner as if the deponent appeared before the judge and testified to the authenticity of the records or items.
8. (h) Failure to comply with this section may result in the application of § § 131.13(m) and 131.61(d) and (e) (relating to continuances or postponements of hearings; and exchange of information).
9. (i) Subsections (a)—(h) supersede 1 Pa. Code § § 35.145—35.152.

Authority

The provisions of this § 131.68 amended under sections 401.1 and 435(a) and (c) of the Workers’ Compensation Act (77 P. S. § § 710 and 991(a) and (c)); section 2205 of The Administrative Code of 1929 (71 P. S. § 565); and section 414 of The Pennsylvania Occupational Disease Act (77 P. S. § 1514).

Source

The provisions of this § 131.68 adopted March 29, 1991, effective March 30, 1991, 21 Pa.B. 1401; amended December 6, 2002, effective December 7, 2002, 32 Pa.B. 6043. Immediately preceding text appears at serial pages (261801) and (222327) to (222328).

Notes of Decisions

Evidence Properly Admitted

The worker’s compensation judge did not err in allowing employer’s medical expert to testify during deposition as to causation issues when the expert’s report was allegedly limited to the worker’s employability. Stech v. Workmen’s Compensation Appeal Board, 678 A.2d 1243 (Pa. Cmwlth. 1996); appeal denied 698 A.2d 69 (Pa. 1997).

General Comment

Although this regulation gives parties the right to inspect records concerning earnings from employment; neither this regulation nor 77 P. S. § 833 authorize unlimited discovery. Discovery requests must be reasonable and relevant to the proceedings before the referee. Honesdale Borough v. Workmen’s Compensation Appeal Board, 659 A.2d 70 (Pa. Cmwlth. 1995); appeal denied 670 A.2d 144 (Pa. 1995).

Subpoenas

The issuance of a subpoena, and not a request for production of documents or the provisions of the ‘‘Personnel Files Act,’’ was the proper and reasonable method for the production of records in proceedings before a referee. Tady v. Workmen’s Compensation Appeal Board, 485 A.2d 897 (Pa. Cmwlth. 1985). (Editor’s Note: The court cited to former § 131.47 which dealt with discovery of records.)

Cross References

This section cited in 34 Pa. Code § 131.62 (relating to oral depositions); and 34 Pa. Code § 131.69 (relating to form of deposition affidavit).